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Lawyers defend 'two-beer' defence

New federal legislation that virtually abolishes a &quot;two-beer&quot; defence to an impaired driving charge is being pulled into court for a legal spot check.

Under new rules, people accused of impaired driving after failing a breathalyzer must now prove the machine malfunctioned or was improperly used rather than providing evidence about their pattern of alcohol consumption. (CARLOS OSORIO / TORONTO STAR FILE PHOTO)

By Tracey TylerLEGAL AFFAIRS REPORTER

Mon., Jan. 12, 2009

New federal legislation that virtually abolishes a "two-beer" defence to an impaired driving charge is being pulled into court for a legal spot check.

Before the new legislation took effect last July 2, people accused of driving with more than .08 milligrams of alcohol in 100 millilitres of blood – particularly if they were only marginally over the limit – would often argue they had consumed just two beers. They might also say they drank the last one not long before the breath test, which could have resulted in more alcohol in their breath than in their blood.

Under the new changes, part of the federal government's Tackling Violent Crime Act, accused people who want to challenge a breathalyzer result are now required to provide the court with technical evidence proving the equipment was malfunctioning or wasn't operated properly.

Some lawyers say the new legislation is unconstitutional.

The first step in the legal challenge begins today when defence lawyers and the Crown appear in the Superior Court of Justice in Toronto for arguments over which level of court should hear the challenge.

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"We're just trying to resolve things quickly, so the government can get on with the business of prosecuting impaired drivers," said law professor Alan Young, who, with defence lawyer Joseph Neuberger, represents three men charged with having unlawful blood alcohol levels.

Young and Neuberger believe the legislation is unconstitutional because it no longer permits them to raise reasonable doubt about the validity of a breathalyzer result by calling evidence about their clients' pattern of alcohol consumption. They say the new rules for challenging breathalyzer results set an impossible standard and leave people who are at risk of losing their license with only an "illusory" defence to the charges.

"The particulars of the breath machines, including maintenance records, specs and the manufacturer's manual are shrouded in secrecy, withheld by the Crown and the manufacturer," Neuberger said.

The legislation was introduced partly in response to concerns raised by police and the advocacy group Mothers Against Drunk Driving.

Neuberger and Young also argue the new rules should only apply to charges laid after the legislation came into effect, not to charges that were already in the system awaiting trial.

Their clients, Arif Khan, Russell Nagle and Donovan Lazarus, are scheduled to have trials in the Ontario Court of Justice at old city hall. But with hundreds of other impaired driving cases in the system and the constitutionality of the new law likely headed for the Supreme Court of Canada, the defence wants to speed up the process. They're attempting to bring their legal challenges directly to the Superior Court of Justice, the next highest court level.

Young argues those circumstances exist. Impaired driving cases are among the most common in the Ontario Court of Justice, he noted. Without guidance from a higher authority, there's a risk of inconsistent rulings on not just whether the new law is constitutional, but which cases it applies to, Young argues.

In fact, as of Nov. 18, when Neuberger and Young filed their written arguments with the court, 31 judges had ruled the law applies to cases that were already in the system as of July 2, while 12 judges held the changes only applied from that time onward.

Only one known case has considered whether the law violates an accused's right to make "full answer and defence" to criminal charges under the Charter of Rights and Freedoms. That happened last July, when Justice Norman Douglas found the new provisions constitutional. But those findings haven't been reviewed by a higher court.

It was reported last year that some officers said they were relying more on temporary licence suspensions rather than laying charges against drivers slightly over the limit. These charges officers felt could be easily beaten with a "two-beer" or "last-drink" defence, which usually relied on testimony from a toxicologist. That expert would look at the accused's age, height and weight and provide the court with an assessment of what the blood alcohol reading would have been, based on what's known about the physiological process of alcohol elimination.

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